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The National Agricultural Law Center the Nation’S Leading Source for Agricultural and Food Law Research & Information Nationalaglawcenter.Org | Nataglaw@Uark.Edu The National Agricultural Law Center The nation’s leading source for agricultural and food law research & information NationalAgLawCenter.org | [email protected] Factsheet, Series: 2020 Farm Bill Conservation Programs: Swampbuster and Sodbuster Scout Snowden This material is based upon Research Fellow, National Agricultural work supported by the Law Center National Agricultural Library, Agricultural Brigit Rollins Research Service, U.S. Staff Attorney, National Agricultural Department of Agriculture Law Center When Congress enacted the 1985 Farm Bill, it included the Conservation Reserve Program (“CRP”), which was intended, in part, to conserve highly erodible land and wetlands. Colloquially known as the “Sodbuster” and “Swampbuster” provisions (“the conservation provisions”), they require farmers to 1) maintain a minimum level of conservation on highly erodible land, and 2) not convert wetlands for crop production, all in return for keeping certain United States Department of Agriculture (“USDA”) benefits. The goal of the conservation provisions is to encourage conservation priorities by reducing the availability of certain USDA benefits to those who make specific land-use decisions. Participants in most of the USDA’s Farm Service Agency (“FSA”) and Natural Resource Conservation Service (“NRCS”) programs are generally required to remain in compliance with the conservation provisions. Additionally, any person who is affiliated with a USDA program participant is also bound by the conditions and requirements of the conservation provisions. Whether someone is considered an affiliated person depends on the structure of the farming operation they work with. If the USDA program participant is an individual, the participant’s spouse or minor children who have a farming interest are considered affiliated persons. Any partnership, joint venture, other enterprise, or trust in which an individual USDA program participant has a direct ownership of, or financial interest in, will also be considered an affiliated person. If the USDA program participant is a partnership, corporation, or other type of entity, affiliated persons are any participant The information contained in this document is provided for educational purposes only. It is not legal advice, and is not a substitute for the potential need to consult with a competent attorney licensed to practice law in the appropriate jurisdiction. 1 or stockholder in the entity, unless they only hold an indirect interest thorough another business enterprise with a 20 percent or less share in the entity.1 FSA and NRCS are the agencies primarily responsible for determining eligibility and ensuring compliance with the conservation provisions. NRCS typically conducts status reviews to ensure that farmers are in compliance with the conditions and requirements of the conservation provisions. These reviews may be randomly selected or may occur because of recommendations from USDA or whistleblower complaint, and may be conducted either on or off-site. While there is no requirement that NRCS investigate allegedly non-compliant tracts of land in-person, it must make an in-person investigation before any benefits are withheld. Before making a violation determination, NRCS must make a reasonable effort to include the affected person in an on-site investigation. Additionally, if a participant disagrees with an off-site determination, NRCS must make an on-site determination. If the on-site determination differs from the original determination, the affected person may appeal the finding to the National Appeals Division (NAD) or to the FSA county committee.2 Sodbuster The purpose of the Sodbuster program is to discourage the conversion of highly erodible grassland into cropland. For land to be considered highly erodible, it must be: - Land that has, or if put into agricultural production would have, an excessive average annual rate of erosion in relation to the soul loss tolerance level; or - Cropland that is classified as class IV, VI, VII, or VIII land under the land capability classification system3 in effect on December 23, 1985.4 Simply put, highly erodible land is land that erodes at an excessive rate, which is determined by its classification on the erodibility index. Soil maps and the erodibility index are the tools used by NRCS to identify highly erodible land. The erodibility index for a soil is determined by dividing the potential average annual rate of erosion for each soil by its predetermined soil loss tolerance value, also known as the T value. This requires the consideration of several factors including the amount of rainfall and runoff, the degree that soil resists water erosion, and the slope length and steepness of the ground. Farmers and landowners who have highly erodible land on their property must work with NRCS to create conservation plans that ensure compliance with Sodbuster and help better manage resources. These plans may be revised based on markets, weather, or developments in technology.5 If participants in certain USDA programs convert highly erodible land or areas comprised primarily of highly erodible land into cropland, the participants become ineligible for program benefits. However, 1 7 C.F.R. § 12.8(a)–(c). 2 7 C.F.R. § 614.1. 3 The land capability classification system classifies soils based on similar hazards are limitations. There are eight different classes, and soil damage and limitations on use increase with the classification number. 4 16 U.S.C. § 3801(a)(11)(A). 5 What is a Conservation Plan?, Natural Resources Conservation Service, accessible at https://bit.ly/33BmUpA. The information contained in this document is provided for educational purposes only. It is not legal advice, and is not a substitute for the potential need to consult with a competent attorney licensed to practice law in the appropriate jurisdiction. 2 there are several exemptions that could maintain a non-compliant participant’s eligibility. For example, a person who acted in good faith to comply with Sodbuster and their conservation plan, but failed to satisfy them may be granted up to one year to return to compliance before losing USDA benefits. Similarly, NRCS will typically not consider a participant to have come out of compliance with Sodbuster if the conservation plan fails, so long as the failure is technical and minor or was caused by circumstances beyond the control of the participant. Participants who find themselves unable to comply because of weather, pests, or similar issues may apply to NRCS for a temporary variance that would allow them to be noncompliant for a specific amount of time without losing eligibility for USDA benefits. When determining whether to grant a variance for natural disasters such as weather, pest, or disease problems, NRCS will consider a variety of factors, including: the percent of the area damaged or destroyed by the event; the percent of expected crop production compared to normal production for that crop; the documented invasion of non-native insects, weeds, or diseases for which no recognized treatment exists; or whether an event is severe or unusual based on historical weather records.6 This is not a complete list of the possible exemptions from the sodbuster provisions; there are many other exemptions provided in section 12.5 of title 7 of the Code of Federal Regulations.7 Swampbuster The Swampbuster program is similar to Sodbuster, but it applies to wetlands instead of highly erodible land. It is important to note that actual crop production on a wetland is not necessary for a participant to be in violation of Swampbuster. Instead, non-compliance occurs when action is taken to make crop production on a wetland possible. These actions generally include draining, dredging, filling, or leveling a wetland. NRCS considers three characteristics to determine whether a certain tract of land is a wetland: 1) Predominance of hydric soils (wet soils); 2) Inundation or saturation by surface or groundwater sufficient to support a prevalence of water tolerant vegetation (wetland hydrology) and; 3) Whether the area supports a prevalence of water tolerant vegetation under normal circumstances.8 When all three of these characteristics are present in an area, that area will generally be considered a wetland. In an effort to better inform farmers and landowners about the requirements of Swampbuster, USDA recently finalized a rule clarifying the process used by NRCS for delineating, determining, and certifying wetlands. The new rule outlines clear procedures for identifying wetland hydrology, including clarified definitions for “wetland hydrology,”9 “wetland determination,” “best 6 7 C.F.R. §12.5(a)(6)(ii). 7 https://bit.ly/3nnHykZ. 8 16 U.S.C. § 3801(a)(27); 7 C.F.R. § 12.31(a)–(c). 9 Wetland hydrology means inundation or saturation by surface or ground water during a growing season at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation. When a wetland is affected by drainage The information contained in this document is provided for educational purposes only. It is not legal advice, and is not a substitute for the potential need to consult with a competent attorney licensed to practice law in the appropriate jurisdiction. 3 drained condition,” and “normal climatic conditions.” The rule also establishes that normal climatic conditions for determining wetland hydrology will rely on the precipitation dataset from 1971-2000.10 When a farmer takes action to make crop production possible on a wetland, they are typically considered non-compliant
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